Citation Nr: 1338000	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  11-01 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel




INTRODUCTION

The Veteran served on active duty from July 1968 to February 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

In June 2010, the Veteran made a claim for any mental health condition, including depression.  Such claim was denied in an unappealed March 2011 rating action.  In light of this subsequent claim, the issue on appeal is limited to PTSD and not expanded under Clemons.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).

In his substantive appeal, the Veteran originally requested a Board hearing with a Veterans Law Judge sitting at the RO.  However, in October 2011, the Veteran's representative indicated that the Veteran would not be able to appear, and no additional request was made to reschedule.  Accordingly, the hearing request is deemed withdrawn.  38 C.F.R. § 20.704.    


FINDINGS OF FACT

1. The competent evidence does not establish a PTSD disability at any time during the appeal period. 

2. The Veteran is service connected for numerous fragment wounds, hoarseness, diabetes mellitus type II, tinnitus, anterior left neck scar, peripheral neuropathy in his lower extremities, malaria, bilateral hearing loss, and a scar on his right outer hip.  His combined evaluation for compensation is 80 percent with one disability rated at 40 percent, which satisfies the schedular requirements for TDIU.

3.  The Veteran is not unemployable for VA purposes.



CONCLUSIONS OF LAW

1. The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013).

2. The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  These notice requirements apply to all elements of a claim, including the degree and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).

In February 2010, the RO sent a letter to the Veteran providing him notice, which satisfied the requirements of the VCAA.  See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b).  This letter was sent prior to initial adjudication of his claims for service connection and TDIU.  The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman.  

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  The record indicates that the Veteran attended counseling around 2001 and was receiving counseling around the time of the February 2011 VA examination.  Apparently his counselor was a VA employee who also worked for the Red Cross.  It is noted that all VA treatment records throughout that time period have been associated with the claim file, and such do not reflect psychiatric treatment.  Accordingly, it would appear that there are outstanding private records.  However, despite receiving appropriate notice in this case, the Veteran did not provide any information concerning where to obtain additional medical records.  Indeed, at a Decision Review Officer hearing in June 2010, he was specifically asked to identify sources of treatment and he made no mention of any counseling received around 2001.  

While VA has a duty to assist the Veteran in obtaining records, the Veteran also has a duty to assist himself by providing VA with information it can use to locate and obtain such records.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Veteran had an opportunity to get assistance from VA and did not do so.
Moreover, in light of his failure to supply the relevant information even when directly asked, it would appear that further development would serve no useful purpose and would only delay the claim.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

Further regarding the duty to assist, the Veteran was afforded VA examinations in March 2010 and February 2011 to evaluate his mental health and ability to work.  There is no indication or argument that these examinations and opinions were inadequate or erroneous.  The Veteran had an opportunity to submit additional evidence and provided statements in support of his claims.  

As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claims.

II. Analysis

In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Board has an obligation to provide reasons and bases supporting its decision; however, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Rather, the law requires only that the Board provide reasons for rejecting material evidence favorable to the Veteran.  Timberlake v. Gober, 14 Vet. App. 122, 123-29 (2000).  Therefore, the analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.

A. Service Connection for PTSD

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  To establish entitlement to service-connection, evidence must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

In addition to the above criteria, claims for service connection for PTSD require medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor.  38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  If the evidence provides that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the Veteran's lay statements alone may generally establish the occurrence of the stressor.  See id. 

The evidence does not show that the Veteran has a current PTSD disability; thus he is not eligible for service connection for PTSD.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection may not be granted where there is no present disability shown).

The Veteran is competent to report symptoms of a mental health disorder but not to diagnose such a disorder as this requires specialized knowledge, training, and application of psychological tests.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds the Veteran credible in describing his symptoms, which are observable to the senses. 

First, the Veteran has an in-service stressor sufficient enough to cause PTSD.  He served two tours in the Republic of Vietnam and was injured in combat.  See DD Form 214.  The claimed stressor is consistent with his combat experience and VA has conceded this element of service connection.  See 38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125(a); Cohen, 10 Vet. App. at 138.

Conversely, however, the Veteran does not have a current PTSD diagnosis.  For VA purposes, a PTSD diagnosis must satisfy the criteria set forth in the DSM-IV.  See 38 C.F.R. § 4.125; see also Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) Fourth Edition (1994).  The Veteran does not have any such diagnosis. 

The record includes two VA mental health evaluations in March 2010 and February 2011 and one consultation with a VA psychiatrist in September 2007.

The March 2010 VA examiner found that the Veteran had some sleep disturbances and painful memories about friends lost in Vietnam, but otherwise did not possess any PTSD symptoms.  The examiner concluded that the Veteran does not have PTSD.  While he met DSM-IV criteria A for a stressor, the Veteran did not meet any of the B or C criteria for significant re-experiencing or avoiding stimuli.  He also concluded that the Veteran did not meet the D or F criteria.  Likewise, the February 2011 VA examiner found that the Veteran's psychological signs and symptoms did not meet the criteria for any psychiatric disorder.  He also noted that the Veteran did not believe he experienced any symptoms associated with a psychiatric disorder.

Finally, the VA psychiatrist in September 2007 diagnosed depression not otherwise specified (NOS) but informed the Veteran that she could not diagnose him with PTSD because it was unclear whether he met the criteria based on the information he presented that day.  The Board notes that it is general practice to expand a claim for a psychiatric disability to include all acquired psychiatric disorders reasonably pled.  See Clemons, 23 Vet. App. at 4-6.  Here however, the Veteran had a separate claim for any other mental health condition, to include depression, that was denied by the RO in March 2011 and not appealed.  Therefore, the issue on appeal is limited to PTSD, which has not been shown.

As there is no evidence to support a current diagnosis of PTSD, service connection is not warranted.  See 38 C.F.R. § 3.304(f); 38 C.F.R. §4.125(a); Brammer 3 Vet. App. at 225.

B. TDIU

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Generally, to be eligible for a TDIU, a percentage threshold must be met.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more.  Id.  If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more.  Id.  

In this case, the Veteran is service-connected for a fragment wound, tensor fasciae late; hoarseness; diabetes mellitus, type II; tinnitus; anterior left neck scar; peripheral neuropathy left lower extremity; peripheral neuropathy right lower extremity; fragment wound left calf; fragment wound right calf; malaria; bilateral hearing loss; and a right outer hip scar.  His fragment wound, tensor fasciae late disability is rated at 40 percent disabling.  For the periods pertinent to the TDIU evaluation, his combined disability rating was 70 percent until June 24, 2010 and 80 percent after June 24, 2010.  Therefore, his combined disability rating of 70 and 80 percent, with one disability rated at 40 percent, meet the threshold requirements for TDIU.  See 38 C.F.R. §§ 4.16(a), 4.25.  

In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  

The Veteran has worked as a self-employed farmer for all of his civilian career.  He reports that he began having trouble working in 2005 and had to stop working in 2009.  See Claim, January 2010.  The Veteran stated the main reason he is unable to work is because of pain and arthritis in his knees.  See VA Examination March 2010.  The Veteran also noted fatigue kept him from working.  See DRO Hearing Transcript June 2010.  The VA examiner concluded that the Veteran's scars from his fragment wounds in his neck, legs, and hip did not cause functional impairment.  The examiner further noted that the residuals of the Veteran's neck wound made him hoarse and could cause him difficulty working in an environment where good phonation and voice capabilities are needed.  The examiner also concluded that his diabetes only caused mild hypoglycemia, and fatigue, about once a month, so it is less likely to interfere with any usual occupation.  

While the Veteran's hoarseness could interfere with his ability to work in an environment where verbal communication is needed, he could still work in many jobs including manual labor and farming; this would not render him unemployable for VA purposes.  Likewise, his diabetes-related fatigue would not render him unemployable for VA purposes because it only occurs about once a month and he could still work in more sedentary jobs.     

The examiner concluded that the Veteran's knees would likely interfere with his daily activities and usual occupation because of the pain and limitations in motion.  The Veteran's knees, however, are not a service connected disability.  The examiner deemed his knee disorder to be the cause of his inability to work, and not his service-connected disabilities.  The Veteran also stated that his knees were the main cause of his unemployment.  See VA Examination March 2010.  TDIU cannot be awarded if the impairment on employability is caused by a non-service connected disability.  38 C.F.R. §§ 3.341, 4.16; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000).  As such, the Veteran cannot be awarded TDIU benefits because the cause of his impairment to employment is his knees, a non-service connected disability.  See id.  There is no evidence that his service-connected disabilities render him unemployable.  

The preponderance of the evidence is against service connection for PTSD and TDIU.  See 38 C.F.R. §§ 3.304(f), 3.341, 4.16.  As such, the benefit of the doubt doctrine is inapplicable and the claims must be denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

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ORDER

Service connection for PTSD is denied.

TDIU due to service-connected disabilities is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs